The California Supreme Court ruled unanimously today that the 49ers' policy of requiring pat-down searches to attend games at Candlestick Park raises serious privacy concerns that the team must justify at a trial. The ACLU of Northern California (ACLU-NC) brought the lawsuit challenging the policy on behalf of Dan and Kathleen Sheehan, long-time 49ers season ticket holders, after the team instituted the pat-down policy in 2005. The Sheehans argued that the policy violated their privacy under the California Constitution. The Court today agreed that people "certainly have, in general, a right not to have others pat them down."
"Californians should not be forced to pay for goods and services with their privacy, whether it's admission to a football game, a shopping mall, or a college graduation," said ACLU-NC Staff Attorney Ann Brick. "In 1972, California voters enacted the Privacy Initiative because they thought that protecting their privacy was too important to leave it up to corporate interests to regulate and control."
The trial court and Court of Appeal had previously dismissed the suit before trial, on the grounds that the Sheehans had consented to the pat-downs by renewing their season tickets. Today's ruling overturns the earlier decisions. As the Court made clear in its opinion, people who choose to go to an entertainment event do not consent "to any security measures the promoters may choose to impose no matter how intrusive or unnecessary." Only the courts can decide whether the measure passes constitutional muster after considering the justification and possible alternatives to the policy.
The 49ers argued that corporate interests may regulate the terms of doing business and that customers can protect their privacy only by declining to do business. However, California's Privacy Initiative makes clear that privacy is too important a value to be left to the unfettered market. Privacy protections encompass personal autonomy, including a person's own body.
The case, Sheehan v. 49ers, will now go back to the lower court for a trial. In defending their intrusive policy, the 49ers will have the burden of proving that that the pat-downs are actually effective in enhancing safety.
"The implications of this opinion go far beyond football games," commented ACLU-NC Attorney Margaret Crosby. "The Court's decision protects Californians' privacy in their daily interactions with the businesses that are critical to our ability to participate in modern society, including banks, telephone companies and insurers."
The pat-down policy was implemented in 2005 in response to a directive from the NFL. Among major national sports, the NFL stands alone in requiring pat downs. No other major professional sport requires routine pat downs -- not baseball, not basketball, not hockey.
In addition to ACLU-NC attorneys Brick and Crosby, attorneys on the case included Mark White with the firm of Chapman, Popik & White, which provided assistance on a pro bono basis.
California Supreme Court Ruling (March 2, 2009)